VICTORIA — When the Supreme Court of Canada granted recognition of aboriginal title recently, the landmark decision emphasized the similarity as well as the critical difference to other forms of land ownership.

“Aboriginal title confers ownership rights similar to those associated with fee simple,” wrote the high court, citing the common form of private property.

“The right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”

But there’s a “carve out” as the court put it, drawing on its own and earlier jurisprudence: “The uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.”

Aboriginal title is distinct: “It is collective title held not only for the present generation but for all succeeding generations. It cannot be … encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.”

The collective and for-all-time aspects of aboriginal title have significant implications for governments, would-be investors and the natives themselves because it places restrictions on the use and disposition of the land, now and in the future.

Many observers have focused on the court’s acknowledgment that governments can infringe title in the name of “a compelling and substantial public purpose,” such as infrastructure projects of national significance.

But the court also cautioned that even where a project has a demonstrably compelling and substantial public purpose, still there are limits on the extent to which governments can encroach on First Nation lands.

“The government must act in a way that respects the fact that aboriginal title is a group interest that inheres in present and future generations … Incursions on aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.”

The court, in a likely invitation to further litigation, left the specifics to be decided on a case-by-case basis: “Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises.”

But one gets a sense of how those obligations might play out here in B.C. from the fountainhead decision in this case — the 2007 ruling of B.C. Supreme Court justice David Vickers in favour of the Tsilhqot’in First Nation.

Vickers’ findings on aboriginal title were adopted in large measure by the country’s highest court in its decision. As it happens, he also discussed the implications of aboriginal rights and title as applied to provincial management of land and resources.

The case before Vickers began with a challenge by the Tsilhqot’in to the provincial grant of commercial timber harvesting rights in the band’s traditional territory. The judge devoted a sizable part of 339 days of court proceedings to the impact of logging on the aboriginal rights to hunt, trap and trade on the land.

“Recognizing aboriginal rights to hunt and trap over an area means wildlife and habitat must be managed to ensure a continuation of those rights, “ wrote Vickers, protection of aboriginal rights being a “paramount objective” of the Canadian constitution.

After hearing reams of expert testimony, he adopted a disparaging view of B.C. forest policy as regards the paramount constitutional rights of aboriginal people.

“There is no doubt that the (forests) ministry seeks to maximize the economic return from provincial forests,” wrote the judge. “On the evidence I heard during this trial, the protection and preservation of wildlife for the continued well-being of aboriginal people is very low on the scale of priorities. A management scheme that manages solely for maximizing timber values is no longer viable where it has the potential to severely and unnecessarily impact Tsilhqot’in aboriginal rights.”

Adopting the language of environmental sustainability, he found “that forest harvesting activities, which include logging and all other silviculture practices, reduce the number of different wildlife species (diversity) and the number of individuals within each species (abundance) in a landscape. Forest harvesting depletes species diversity and abundance through: 1) direct mortality; 2) the imposition of roads; and, 3) the destruction of habitat.” No anti-logging activist could put it better.

Hence his rejection of the government-granted timber cutting rights as an unjustifiable infringement on aboriginal rights: “Forest harvesting activities would injuriously affect the Tsilhqot’in right to hunt and trap in the claim area. The repercussions with respect to wildlife diversity and destruction of habitat are an unreasonable limitation on that right.”

The Vickers approach, emphasizing the need to preserve wildlife diversity and prevent the destruction of habitat, would appear to block not just forest harvesting, but any uses of the land that would encroach on the rights of future generations.

Applied broadly to the many other places in the province where aboriginal rights and title are asserted, it could raise a not-to-be-hurdled barrier to many kinds of land use and resource development in B.C.

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